Tag: VidAngel

Angels and Monkeys at Appeals Court

Photo sources by artush & prudkov

 

 

 

 

 

Readers can be forgiven for focusing on court news other than copyright stories these days, but lest you think all the fun is emanating from the White House, here are two items of note this week…

VidAngel Appeals Injunction

The Ninth Circuit, in the spotlight for ruling against Trump’s executive order known as the travel ban, heard oral arguments on June 8 in the Disney v. VidAngel case. As described in this post, VidAngel’s business model is effectively a Video On Demand (VOD) service that provides filtering for consumers who want to see mainstream fare without “objectionable” scenes that might include sex, nudity, profanity, blasphemy, and (I don’t know) rainbows?

The studios sued on the grounds that VidAngel’s model violates the rights of reproduction and public performance under Section 106 of the Copyright Act as well as prohibitions against “ripping” DVDs under Section 1201 of the DMCA. VidAngel has tried to argue that its business model is legal because its customers have the right to “filter” under the provisions of the Family Home Movie Act (2005). In December of 2016, the District Court for the Central District of California granted an injunction, pausing VidAngel’s activity, holding that the studios would be expected to prevail on the merits across all triable issues. VidAngel then appealed that injunction to the Ninth Circuit.

As Ashley Cullins reports for The Hollywood Reporter, a hot mic captured Judge Carlos T. Bea whisper to his colleague Andrew D. Hurwitz, “I think this one’s a lot easier,” meaning, of course, in contrast to the travel ban debacle, but quite possibly indicating that the District Court’s injunction will be allowed to stand. Attorney Donald Verrilli, counsel for the studios, stated, “What they’re essentially saying is ‘if we filter, we can stream without a license.’” And that about sums it up. Meanwhile, he also was clear to state that his clients are not opposed to filtering as permitted by the FMA, adding that technology provider ClearPlay, which enables home filtering, filed an amicus brief on behalf of the studios.

Assuming the injunction is sustained and the case is remanded for trial, it will be interesting to see if VidAngel’s executives decide that their evangelical mission is more important than a return on investment. Because it seems quite clear that there is nothing legal about their business model.

Who Knew Copyright for Monkeys Was Still in Play?

In a more extreme example of ideologically-charged litigation, also on appeal at the Ninth Circuit, it turns out that the organization PETA (People for the Ethical Treatment of Animals) is still ape over the idea that a primate can own a copyright. For anyone who missed it, the animal rights organization, in September of 2015, sued British photographer David Slater and US publisher Blurb on the grounds that both had infringed the copyrights of a Sulawesi black crested macaque who apparently snapped her own photograph with Slater’s camera. Under the circumstances, Slater’s copyright ownership of the image was called into question by the Wikimedia Foundation and was debated online—in good faith and bad—by various constituencies.

In my view, Slater’s claim has merit if, as described on his blog, he purposely set up the camera and used what he’d learned about the monkeys’ curiosity to create the conditions for the selfie to be made. He writes …

“I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play.  I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens.  I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens.”

Based on American case law to date, this non-attorney thinks that should be sufficient to hold that Slater owns the copyright, whereas if the camera were in fact picked up serendipitously by the macaque and snapped—conditions that would almost never produce the image in question, by the way—Slater’s claim would probably be very weak under U.S. law. Regardless, only PETA would think to argue that the monkey herself can own a copyright; and in their complaint, they relied on the testimony of primatologist Dr. Antje Englehardt as a “next friend” of the monkey plaintiff.

As of last week, however, counsel for the defendants have stated that PETA should be viewed by the court as lacking the standing to represent the macaque’s interests in light of the fact that Dr. Englehardt was recently arrested for harassing PETA’s lead counsel. “Regardless of the merits or outcome of the criminal case against Dr. Engelhardt,” write Slater’s attorneys, “its very existence is a relevant consideration on whether PETA can adequately represent the interests of Naruto,* notwithstanding the documented animosity that has developed between PETA and Dr. Engelhardt.” Okay but…

A “next friend” in common law is a person who represents another person because the latter is either a minor or has been deemed incompetent—not because he/she has been deemed a monkey! While pundits like Mike Masnick at Techdirt focus attention on the non-existence of any copyright in the “monkey selfie” (which is debatable as described), what is unquestionably non-existent in this case is any animal’s standing to enforce a copyright in U.S. court.

This was made quite clear when Judge Orrick of the California District Court for the Northern District stated that he could find no evidence in the statute that animals are entitled to own a copyright in the United States. That ought to about settle the matter. Because, frankly, whether one takes a utilitarian view of IP, a natural rights view, or some combination of the two, Orrick’s holding should seem forbiddingly tautological for most plaintiffs, even those with the anthropomorphic zeal of PETA.

*PETA has named the macaque “Naruto,” though Slater states that the monkey is a female others have named “Ella.”

VidAngel: A Litany of Copyright Defenses

Photo by rootstocks

VidAngel offers what is functionally a video-on-demand (VOD) service plus “filtering” for viewers who want to see mainstream fare with certain naughty bits—sex, foul language, violence, etc.—removed. To provide this service, though, VidAngel allegedly violates the copyright owners’ exclusive right of reproduction and public performance, as well as Section 1201 of the DMCA prohibiting circumvention of technical protection measures (TPM) used to encrypt DVDs.

Movie studios Disney, 20th Century Fox, Lucasfilms, and Warner Bros. sued VidAngel, and in December 2016, the District Court for the Central District of California issued an injunction, halting the defendant’s operations. The judge’s opinions in the order state that all arguments favor the plaintiffs’ likelihood of success on the merits.  VidAngel has appealed the injunction to the 9th Circuit where briefs were filed last week.

The Family Home Movie Act (2005)

As a frame of reference, if a consumer owns a feature film on DVD, a statute called the Family Home Movie Act (FMA), allows the use of technological means (e.g. a product called ClearPlay) to make limited portions of his disk “imperceptible” while playing it in a private viewing situation.  Designed for audiences who want to “filter” out scenes containing the aforementioned naughty bits, the FMA affords the viewer a limited right to use technology to achieve this “filtering” without infringing copyright.  (As a no-tech option, there is of course no limit to the amount a viewer may close his eyes, plug his ears, and sing La-La-La during those portions of a movie he finds offensive.)

We can debate whether or not “filtering” motion pictures is truly a right, but there is apparently enough of a market that wants to “filter” that the subject has at least been an issue.  For instance, the Directors Guild of America (DGA) was opposed to filtering technology like ClearPlay, claiming that editing the films violates the right of the author to disseminate a work as he sees fit, which is certainly true. So, the FMA was enacted as a legal compromise, written very narrowly to provide the home viewer with the ability to “make imperceptible” limited portions of legally-acquired DVDs.

Enter VidAngel

The CEO of VidAngel, Neal Harmon, reportedly grew up in a household where, for religious reasons, he was not allowed to watch a number of mainstream movies.  Remembering what it felt like to be culturally out of the loop, Harmon founded VidAngel in Utah in 2013—it is now headquartered in Silicon Valley—as a way to provide families in similar circumstances with a solution.  According to testimony, VidAngel approached the studios with their model; and the studios were not interested. There are any number of reasons why a film producer will be opposed to enterprise-scale “filtering” by a third party, and the studios were certainly under no obligation to engage in that endeavor.

Deciding to forge ahead, VidAngel developed a convoluted workflow and business model based on a bold legal assumption that the FMA allows the company to provide an unlicensed video-on-demand and “filtering” service while avoiding liability for infringement. The overly-complex model looks a lot like what it is:  an attorney’s Rube Goldberg attempt to circumvent copyright law. And although VidAngel wants to make this a story about the right of consumers to “filter,” launching the hashtag campaign #savefiltering, that debate has little bearing on the infringing nature of the VidAngel enterprise.

VidAngel’s Model/Workflow

VidAngel buys feature film DVDs, which they decrypt, digitize, organize, and store as “segments” that are tagged to facilitate “filtering” by pre-selected criteria (e.g. blasphemy). A customer uses the VidAngel app—available on Roku, AppleTV, Chromecast, etc.—to select among the criteria and create his “filtering” preferences.  Next, the customer “buys” a DVD from VidAngel’s inventory for $20—let’s say 1988’s Working Girl. But having filtered for nudity, he does not want to see Melanie Griffith vacuuming topless. (There’s a cleanliness next to godliness joke in there, but I’ll let it go.)

Most of the time, the customer doesn’t choose to receive the DVD he “bought”—it does still have the unwanted scenes, after all—but instead, he streams Working Girl, sans topless vacuuming scene, and then “sells” the DVD back to VidAngel for a refund minus $1/day for a standard-def stream ($2/day for high def). Note, the DVD never changed hands; VidAngel “held the DVD” for the customer during the “buy-sellback” interval.

According to VidAngel’s testimony, 80% of the disks are “sold back,” so if this sounds like an absurdly complicated way to operate what is primarily a VOD service, that’s because it is overly complicated—and quite on purpose. Because what VidAngel is counting on is that during the brief period when the customer “owns” the DVD, that customer may then legally “direct” VidAngel to perform the same function he would otherwise be allowed to perform at home under the FMA.  That’s their theory anyway.

The fact that VidAngel markets its service as providing streaming for “as low as $1” belies its claim as a “reseller” of disks; and the fact that 80% of its customers “sell back” the DVDs seems  more than sufficient evidence to reasonably describe the core business as video-on-demand. But even if a court might agree that a VidAngel customer is temporarily the “owner” of the DVD, this should have no bearing in assessing VidAngel’s infringing activities; and their own workflow makes this clear.

VidAngel Infringes Before a Customer Exists

In order to prepare files for “filtered” viewing, the company has to decrypt a DVD and then make and store copies of entire films on its servers (i.e. in fixed form). For practical reasons, the company must perform these two infringing activities prior to any customer “buying” any disks. There is simply no other way to organize the workflow and provide the service they offer. Because the infringement against the owners’ right of reproduction, and violation of the DMCA, occurs before a customer becomes part of the workflow, VidAngel’s claim that it is shielded by the FMA on the grounds that they “filter” at the direction of a DVD owner is simply impossible. The only owner of the DVD at the time when decryption and copying are performed is VidAngel. Moreover, VidAngel has predetermined a set of criteria for “filtering,” and no matter how many possible permutations of a given film this may produce, the company has still acted to create a finite set of “filters” it makes available to a prospective DVD owner rather than its claim to “filter” at the direction of an actual DVD owner.

Next, when VidAngel streams a movie, this constitutes a public performance in violation of another exclusive right protected by copyright.  Again, VidAngel puts its faith in the FMA, arguing that because they only stream a “filtered” version of a movie to the customer during the period when the customer “owns” the DVD, they are not publicly performing any more than if the customer himself were to engage in the same function at home using a legal “filtering” technology as permitted by the FMA.

Here, VidAngel appeals to the “spirit” of the FMA and not the statute, implying that Congress believed generally in the principle of “filtering” when it wrote the law. Whether this is true of Congress or not, VidAngel is asking the court for an extremely broad (dare I say, leap of faith?) interpretation of narrowly written legislation that does not allow a party doing the “filtering” to publicly perform a film beyond the confines of ordinary private viewing.   The FMA simply does not anticipate a model anything like VidAngel, which is exactly why the company is straining to create its own loophole in the law with its over-complicated pretense of “selling and buying back” DVDs.

VidAngel Claims Fair Use

Finally, VidAngel appeals to fair use doctrine, claiming that the “filtered” versions are “transformative” under the first prong, that the service is not a substitute under the third prong, and that the service does not create potential market harm under the fourth prong.  I suspect the appellate court will agree with the district court, which found that the fair use test favored the plaintiffs across the board; but it was the judge’s response to VidAngel’s fair use claim under the fourth prong that I find particularly revealing about the rationales being applied in VidAngel’s defense.  The court states:

“VidAngel attempts to support their arguments by offering customer survey results that indicate that over 51% of VidAngel customers would not watch their offerings without filtering. The survey results are ultimately detrimental to VidAngel’s arguments. The fact that 49% of VidAngel’s customers would view movies without filters shows that VidAngel’s service does serve as an effective substitute for Plaintiff’s unfiltered works, for approximately half of VidAngels users.”

Not that attorneys for VidAngel aren’t on the ball, but they actually presented evidence to indicate that nearly half of VidAngel’s customers may be poached from the potential customer base of the rightful owners of the works.  That certainly seems like a good way to fail on the fourth prong of the fair use test, but the self-defeating oddness of this argument is consistent with the major theme running through this entire case:  that the overly-complex design of the VidAngel model reveals a strenuous, ham-handed, effort to thread the enterprise through the legal boundaries of copyright.  It is little surprise that the lower court found all of VidAngel’s arguments untenable, and it is hard to imagine that the appeals court will not sustain the injunction.

A Moral Enterprise?

Advertised in their promo video as “Movie Heaven,” VidAngel presumably targets a market with sincerely held religious beliefs, even though the first laws they seem to have overlooked are Commandments #8 & 10: Thou shalt not steal, and Thou shalt not covet, respectively.  For all the assumed piety in VidAngel’s “filtering” crusade, the company clearly feels no sense of moral conflict about its for-profit, unlicensed exploitation of the thousands of people whose labor makes the movies. In fact, it is notable that among the content a VidAngel subscriber may have “filtered” from viewing is the end credits listing the names of all those workers.  I’ll leave the moral rationalization of that to the operators of VidAngel themselves, but as far as the copyright implications go, it seems like they don’t know what the H-E-double-hockey-sticks they’re doing.